1. Preparing for the H-1B Lottery: What Employers Need to Know
Klasko, Rulon, Stock & Seltzer, LLP
Philadelphia New York
1800 JFK Blvd. Suite Madison Ave. Suite 1518
Philadelphia, PA New York, NY

2. Preparing for the H-1B Lottery Agenda
Legislative & Regulatory Proposals
Preparing for this Year’s H-1B Crunch
Service Center Issues
Covering the “Cap Gap”
Avoiding H-1B Quota
Alternative Visa Options
Q & As

3. Legislative & Regulatory Proposals
This Year’s Quotas: 58,200 + remaining Chile and Singapore (6800 subtracted)
Last year’s cap reached on first day (133,000 petitions filed)
“Master’s Cap” – 20,000 petitions for persons with Master’s or higher degree from U.S. university
Last year: open for 1 month
This year – also a “Day 1” lottery?

4. Legislative Fixes Proposed (Not Passed)
“SKIL” Bill addressing H-1B issues
Raise cap to 115,000 base
“Market escalator” if cap reached
No cap for U.S. Master’s degree

5. Legislative Fixes Proposed (Not Passed) (cont’d )
Proposed as Part of Comprehensive Immigration Reform and as Stand-Alone Bill
Opposition to CIR generally and to stand-alone H-1B relief
Counter-Proposals: Recruitment attestations, limit number per employer, restrict 3rd party placement.

6. Regulatory Fixes? Extension of OPT for F-1s to 29 mos?
Gives 2 chances to apply
May be limited to STEM fields
May require employer to participate in e-Verify
USCIS supports, but ICE “owns” SEVIS

7. Regulatory Fixes? (cont’d )
Prohibiting Multiple Filings by rule?
Not currently prohibited, but frowned upon
Unclear how it could be written and cleared soon enough
Definition difficulties – same employer, different jobs?
H-1B “Pre-Registration” System?
Meant to prevent “Day One” crush
Requires complex new regulations – shelved for now

8. Preparing for This Year’s H-1B Crunch
Identify cases early – by February
Look at Meeting Requirements on April 1
May 2008 Bachelor’s Graduates – finish early? OR rely on experience plus education?
Master’s Cap – rush requirements completion to hit April 1
File LCAs Early – give up time on back end

9. Preparing for This Year’s H-1B Crunch (cont’d )
Create Reasonable Expectations About Hiring
Look at Lottery chances
Have a “Plan B”
Improving Chances in the Lottery
Premium Processing? Probably Not
Multiple Opportunities for One Employee
Be Aware of Multiple Employers for one Employee
Multiply Filings for the Same Opportunity?
Over-recruiting and Over-filing for Similarly Skilled Professionals Overseas

10. Preparing for This Year’s H-1B Crunch (cont’d )
Be Aware of Delays in Receipting and Acceptance
Be Aware that Master’s Cap Also Needs “Day One” Filing
Be Ready for Last-Minute Changes

11. Service Center Issues Bi-Specialization and Filing
Unclear Whether One Location or Two
Last Year’s Receipting Process
When is H-1B “counted”?
Apparently upon petition approval
Must H-1B Start Work on 10/1?
Change of Employer effective 10/1?

12. Covering the “Cap Gap” What is the “cap gap”?
Change of status versus petition approval
Options for interim status
B-2
F-1 registration as continuing student
H-4 or other derivative status

13. Covering the “Cap Gap” (cont’d )
Timing of an Application to Close the Gap before 4/1
Travel after approval of the Change of Status?
“Last Action” rule?
Travel and Reentry more Prudent
Timing
Portability – until approved? or after?
Distinguish from Legal Status

14. Avoiding H-1B Quota Exemption based on employer
Universities
Non-profit affiliated with universities
Non-profit or gov’t research organization
Or place of employment, law says “at”
Exemption based on employee
Previously counted
Singapore/Chile
Concurrent employment

15. Alternatives to H-1B Alternative Visa Options O-1 E-3 (Australians)
TN (Canadian/Mexicans)
J-1 (new rules limiting applicability)
H-3 (training for position abroad)
E visas (treaty between home & US)

16. Alternatives to H-1B (cont’d )
Alternative Visa Options (cont’d)
L visas (work for company overseas, transfer to US)
I visa (journalists – disseminate news abroad)
EAD through spouse’s status
J-2 E
L-2
I-485

17. Alternatives to H-1B (cont’d )
Alternative Visa Options (cont’d)
Straight To Permanent Residence
Employment-Based First Preference
Concurrent Filing of I-485
EAD 90 Days after filing
May take 90+ days to prepare
Possible India/China Quote Issue later this year

18. Alternatives to H-1B (cont’d )
Alternative Visa Options (cont’d)
Employment-Based Second Preference
Concurrent filing (except India/China)
NIW or Labor Certification Requirement
Labor Certification Timing: 90+ days to prepare, days to adjudicate

19. Questions?

20. Speaker Contact Information
William A. Stock, Esq.
Tele:
Fax:
Suzanne B. Seltzer, Esq.
Tele:
Fax:
Elise A. Fialkowski, Esq.
Tele:
Fax: